Immigration (Fiscal Sustainability and System Integrity) Amendment Bill

Members, the committee is resumed on the Immigration (Fiscal Sustainability and System Integrity) Amendment Bill. When we were last debating the bill before the lunch break, we had just concluded the debate on Part 2. We now come to Part 2A. Part 2A is the debate on clause 56A: “Amendment relating to repeals, transitional provisions, saving provisions, and related matters”. The question is that Part 2A stand part.

Thank you, Madam Chair. As you have rightly said, this is around amending the deportation liability of residence class visa holders and it amends section 431 of the principal Act. It is really good to see that care has been taken to cross-reference and make sure that where there has been an imposing of conditions and limiting of rights, that the Minister and officials have taken care to ensure that there are, equally, the exemptions that correspond.

If we go to the principal Act, section 431 talks about the deportation liability of residence class visa holders convicted of a criminal offence. In subsection 431(1)(a), (b), and (c), it has various carve-outs for people who would be exempt under that principal Act. What we see from the original amendment—not the amendment of the amendment that was dropped today—is that suddenly we have got people who have been found guilty captured by some of those provisions.

What this quite rightly does is it includes ensuring that those who are found guilty are also able to access those exemptions. I guess the question is why go to all that trouble to unpick something when it would have been easier just to not add “found guilty” into the original deportation provisions. We haven’t asked or heard from the Minister whether she has received Ministry of Justice advice on the rights and impacts of that, and those provisions are in replacement sections 156, 158, 161, and 18C, so I would like to know why we have got this convoluted kind of carve-out rather than not simply extending them in the first place. Did the Minister receive advice about that?

Also, if we think about proportionality, which has been impacted here, and particularly when we’re talking about people who are guilty, there are people who are convicted for things overseas, for very petty things including political things where they could be found guilty overseas, and now they are able to access this exemption but they’re still captured by the extension of guilt to the conviction list in the original Act. I know that’s a bit confusing, but it is a very convoluted process and we haven’t heard the advice that the Minister received on why those powers have been extended. Wouldn’t it have been simpler to not have to do this and we would do away with Part 2A and simply not have that extension?

On that basis, my colleague Vanushi Walters actually does have a tabled amendment. She is much more across the legalities of this than me and I would really like her to have the opportunity to speak to that.

Thank you, Madam Chair. I thought I would rise and speak to my amendment filed at 12.05, which reads, “In Part 2A, clause 56A, insert in section 431, in the heading to section 431, the words ‘unless subject to a discharge without conviction’ after the words ‘or guilty’ ”. As my colleague Ingrid Leary has said, this responds to that concern that was raised by the Law Society in their submission, where they pointed out that the automatic triggering of deportation liability in such cases would really place, or could really place, a person in jeopardy of severe immigration consequences, even where the courts have themselves determined that—applying a proportionality test in section 107 of the Sentencing Act, which is a test that can and should be applied because we expect judges to be turning their minds to the specific consequences of the case—the consequences of a conviction would be out of proportion to the gravity of the offending. So this isn’t something that’s used all the time by judges, but, certainly, as the decision makers closest to the individual concerned and the context of the issues, the concept is there—it’s a familiar one in law—that the judge can determine whether the circumstances are such that a discharge should be granted.

I think the flip side of that, as well, is that judges will be aware of this legislation coming through the pipeline, so you can imagine that a discharge wouldn’t be granted if it wasn’t in the interest to do so or if there were security risks in place. So, just once again, I’m really urging the Minister of Immigration to consider whether that is an aspect of this bill that can be changed. Ideally, my sense is we wouldn’t just be doing it in this part, of course; we would be doing it in both the substantive heading as well as the substantive provision. However, this is an opportunity to fix what seems to me to clearly be an issue, and an issue that sits starkly against judicial powers to assess situations and determine whether liability should attach, whether convictions should attach, or not.

Thank you, Madam Chair. Just following on from the previous two speakers, I want to focus on the fact that this one says “convicted” and “or guilty”. But, again, I’m going to mention, reference, a previous section but not actually talk about the previous section, which is that in a previous section we specifically talked about two types of being guilty: being found guilty and pleading guilty. But over here, the title is, rather than saying, like the previous section, “convicted”, “found guilty”, or “pleaded guilty”, it is just “convicted”, “or guilty”.

I want to check with the Minister of Immigration that in this case the inserted words “or guilty” covers both types—“found” and also “pleaded”. If it does cover both types—for example, not just simply those who are found guilty—I wondered if the Minister could advise the committee on when you’re looking at deportation or deportation liabilities, has there been any work that’s been done looking at how this would potentially affect people’s intention to plead guilty in the first place, because whether they are pleading guilty or found guilty or don’t have a conviction, are acquitted, or are convicted, the outcome is all going to be the same to them in terms of deportation liability of resident visa class.

So I just want to check those two questions with the Minister—if guilty covers both types and whether there’s any sort of research or any sort of advice being given around the impact this will have on people who may no longer then wish to plead guilty because they’re going to be deported regardless; they might as well try their luck and go through the court process.

CHAIRPERSON (Barbara Kuriger): OK, so we don’t potentially have any answers to those questions. I’m sure, Lawrence, you can ask another question. I’m just going to get some advice. This is not a reflection on the Minister in the chair.

Absolutely not, and I really appreciate you, Madam Chair. We understand that the Minister in the chair is not the same Minister we had previously, but also that there are officials involved. I just want to seek clarification from you, Chair—if the Minister should receive some advice on this, it’s something that a Minister could speak to at a later part and just quickly reference this section on some of the questions we may have. That’s all.

CHAIRPERSON (Barbara Kuriger): I’m just taking some advice. Thank you. So the advice is, unless you have some more questions, we will take this part to a vote. So we’ll do that now.

The question is that Vanushi Walters’ tabled amendment to clause 56A be agreed to.

The question is that Part 2A be agreed to.

Part 3 Consequential amendments, and Schedules 1 and 2